October 28, 1993
Mr. Scott S. Oakley, Counsel
State of New York
Crime Victims Board
845 Central Avenue, Room 107
Albany, NY 12206-1588
The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.
Dear Mr. Oakley:
As you are aware, I have received your letter of September 22.
Please accept my apologies for the delay in response.
You have sought my views concerning rights of access to "Goals
and Timetables Status Reports" prepared by the Department of Civil
Service. It is your understanding that those reports consist of
"summary statistical information" and that they do not identify
agency employees by name or social security number, but rather "by
job title and the sex and race or ethnicity" of the incumbents of
positions. In conjunction with the foregoing, having sought
guidance on the matter from the Department of Civil Service, your
agency's affirmative action officer was advised that insofar as
such a report "permits the idenfication of individuals because of
the small number of employees in a category, such information must
be withheld" on the ground that disclosure would constitute an
unwarranted invasion of personal privacy pursuant to the Freedom of
Information Law and the Personal Privacy Protection Law.
The letter containing that advice included reference to and
relied upon an advisory opinion that I prepared in 1985. That
opinion involved a list that contained racial or ethnic data
identifiable to gubernatorial appointees, and it was advised the
names of appointees coupled with information concerning their
minority status, racial or ethnic characteristics could be withheld
based upon consideration of privacy.
I disagree with the guidance offered to your agency, and I
believe that the situation at issue in the 1985 opinion was
factually different and, therefore, distinguishable from the matter
that you have raised. While I continue to believe that portions of
records including public employees' names and their race or
ethnicity may be withheld, the reports that are the subject of your
inquiry do not contain names coupled with racial or ethnic
characteristics. On the basis of those reports, in order to
establish that the incumbent of a particular title has a certain
racial or ethnic characteristic, there would have to be some
independent knowledge or source of knowledge that exists separate
from the data contained in the records.
It is noted that in the 1985 opinion, I expressed the view
that "a general listing of all gubernatorial employees, without
reference to data pertaining to ethnicity or race, would be
accessible." Reference was also made to §87(3)(b) of the Freedom
of Information Law, which requires that each agency maintain a
record that includes the name, public office address, title and
salary of all officers or employees of an agency. For reasons
described in that opinion, that record in my view is clearly
available. To suggest that elements of the reports in question or,
alternatively, a list of appointees or a record identifying
employees by name, title and salary must be withheld because a
recipient of those records could use them to ascertain an
employee's race or ethnicity would in my view be unreasonable and
inconsistent with the law. None of those records include reference
to the race or ethnicity of named individuals. Consequently, I do
not believe that they could properly be withheld.
Lastly as you are aware, when disclosure by a state agency
would constitute an unwarranted invasion of personal privacy, the
Freedom of Information Law, §89(2)(a), when read in conjunction
with the Personal Privacy Protection Law, §96(1), would preclude an
agency from disclosing. The application of those statutes in that
manner was relevant in offering advice in the 1985 opinion because
the record in question identified individuals by name and race,
ethnicity or minority status. No such personal identification
appears in the reports in question.
In sum, for reasons discussed in the preceding commentary, I
believe that the nature of the records at issue is different from
those considered in the 1985 opinion upon the Department of Civil
Service apparently relied. Moreover, since the reports in question
consist wholly of statistical or factual information and do not
identify specific employees, they must, in my view, be disclosed
pursuant to §87(2)(g)(i), of the Freedom of Information Law.
I hope that I have been of some assistance. If you would like
to discuss the matter, please feel free to call.
Robert J. Freeman
cc: Marie D. Dukes, Counsel